Fredman v. Foley Bros., Inc., 1456.

• Decision Date: 28 May 1943
• Docket Number: No. 1456.,1456.
• Parties: FREDMAN v. FOLEY BROS., Inc., et al.
• Court: U.S. District Court — Western District of Missouri

50 F. Supp. 161

FREDMAN v. FOLEY BROS., Inc., et al.

No. 1456.

District Court, W. D. Missouri, W. D.

May 28, 1943.

Clyde Taylor, of Kansas City, Mo., for plaintiff.

Michaels, Blackmar, Newkirk, Eager & Swanson, Kenneth E. Midgley, and Bert E. Church, Captain, J. A. G. D. Litigation Officer, Seventh Service Command, all of Kansas City, Mo., for defendants.

OTIS, District Judge.

This case was removed from the state court. It was brought under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., by plaintiff, an employee of defendants, on his own behalf and on behalf of other employees whose agent he is, to recover claimed unpaid compensation and for liquidated damages. The total amount sued for is $19,200. There is diversity of citizenship between plaintiff and defendants. A motion to remand has been argued and is now to be ruled.

There is a conflict between district courts as to whether a case of this character is removable. One group holds that it is not, another that it is. Since I already have expressed my views in Wingate v. General Auto Parts Co., D.C., 40 F.Supp. 364 (although that was not a case in which more than $3,000 was involved, probably not a significant distinction), I shall not now write largely. My purpose in writing anything is to make it clear to counsel who have ably argued the motion that I have considered their contentions. I do not expect to enrich the literature which already has accumulated. Moreover, the most laboriously constructed opinion of a district judge is likely to be flattened out by a puff of wind emanating from higher altitudes.

The underlying question is simple. The courts which have said that a case like this is not removable say that Congress legislated to that effect when it provided in the act that "Action to recover liability under the act may be maintained in any court of competent jurisdiction * * *". Section 216(b). Since there is no controversy that a state court is a "court of competent jurisdiction," they say that the provision that an action may be maintained, e. g., in the state court of Jackson County, whence this case was removed, can only mean that it may be instituted originally in that court and carried through to judgment in that court and, hence, that it is not removable. For convenience only (not that the word fits precisely) we may call this the liberal interpretation.

Courts which have said that a case like this is not removable contend that the dictionary meaning is not to be given to the word "maintained." They would give such a meaning to the clause, "may be maintained in any court of competent jurisdiction," as this: The action may be brought in any court of competent jurisdiction and thereafter shall take its course in a regular manner. For convenience we may call this the reactionary interpretation. It is reactionary only in that it would preserve the old situation against the seeming purpose of the Congress.

Now it avails nothing to say that to give the reactionary interpretation to a common non-technical word like "maintained" is to distort the word's usual significance. Let us avoid that. Let us say arguendo that the bizarre meaning asserted is a possible meaning. Then we have two possible meanings, the usual meaning and the bizarre meaning. And we must choose between them. To choose between them is not to legislate, but to interpret, a proper judicial function. Which is the more reasonable interpretation?

1. We know that Congress had in contemplation, when it said "any court of competent jurisdiction," federal courts and state courts. We know that it had in mind laborers' wages and actions for their recovery. Congress knew that, generally, such an action would involve a small amount, far less than $3,000. Obviously Congress intended to serve the interest of employees when it provided that actions might be "maintained" in any court of competent jurisdiction. All these propositions may be said to be self evident. Who will deny any of them? Who will deny that the purpose of the whole act is to serve the interests of employees? If that purpose were not sufficiently revealed in every line, it is expressly declared in the declaration of policy set out in Section 202(a).

When, exercising a judicial function, we must choose between two possible interpretations, is it not reasonable to take that which serves the purpose of the act and to reject that which defeats it? But it is idle to say — let us not waste words upon it — that the interests of employees are not better served if they may begin a suit to recover wages due in a state court and then maintain it there until judgment. A closet academician might say the interests of employees would be as well served under the reactionary as under the liberal interpretation. No lawyer will say that, whose intellectual umbilical cord has been cut. Especially will no lawyer say that when it is considered that it is the theory of the removing defendant here — frankly admitted at the oral argument — that every case is removable, even the ten dollar cases.

2. Not only does the liberal interpretation serve the purpose of the act and the reactionary interpretation defeat it, it also conforms with the elementary rule that every word used in a statute is to be given significance, its natural and usual significance, if that is possible (not some archaic or colloquial meaning). It is true that one, asserting a proposition in argument, will sometimes say — "I maintain the proposition," meaning he asserts the proposition and that he intends to continue to assert it. But even that secondary meaning never is so emasculated as to be synonymous with — "I shall begin to assert." He will be put to it who can, convincingly, substitute any word or any phrase for the word "maintained" which substituted word or phrase means — "may be instituted in any court and there continued to judgment unless removed." Why did not Congress use the word "begun," or "filed", or "commenced" or "instituted", if Congress meant no more? They are simple words, words in daily use, as simple as "maintained." It did not use them.

3. But let us consider the arguments for the reactionary interpretation. It is argued that, except for the word "maintained" in Section 216(b) any case brought to enforce liability under the act, whatever the amount involved, at least where there is diversity of citizenship, undoubtedly would be removable. The soundness of the argument must be conceded. Prior to the enactment of the Fair Labor Standards Act, which is expressly declared, in Section 202 (b), to be an act regulating commerce, the district courts of the United States were given jurisdiction "Of all suits and proceedings arising under any law regulating commerce." 28 U.S.C.A. § 41(8). It was expressly provided (in 28 U.S.C.A. § 41 (1) that the $3,000 provision should not apply to suits arising under Section 41(8). And it was provided in 28 U.S.C.A. § 71, that any "suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction" may be removed from a state court by a defendant non-resident of the state. With full knowledge of these provisions of law the Congress wrote in the Fair Labor Standards Act that an action to enforce liability under the act "may be maintained in any court of competent jurisdiction." What are the arguments for interpreting the phrase "may be maintained" as meaning only, may be begun or may be instituted or may be commenced?

This is the first argument. There have been cases, it is said, in which the word "maintained" is used synonymously with "commenced." This argument is presented in Owens v. Greenville News-Piedmont, D.C., 43 F.Supp. 785 and Ricciardi v. Lazzara Baking Corp., D.C., 32 F.Supp. 956. But if those cases are examined (they are cited in 38 C.J. 336) they lend little support to the reactionary interpretation of the statute here considered. The most that any of them holds is that where the context clearly indicates that the word "maintained" is used in some lesser significance than its ordinary meaning then that lesser...